Tag: EPA

EPA Releases Final Wetland Connectivity Report Clarifying “Significant Nexus”

The US EPA recently released the final draft of its report on the Connectivity of Streams and Wetlands to Downstream Waters. The purpose of the report is to summarize current scientific understanding about the connectivity and mechanisms by which streams and wetlands affect the physical, chemical, and biological integrity of downstream waters. The focus of the review is on surface and shallow subsurface connections of small or temporary streams, nontidal wetlands, and certain open waters. The report stresses that it neither considers nor sets forth legal standards for Clean Water Act (CWA) jurisdiction, nor does it establish EPA policy.

In 2006, the US Supreme Court decided Rapanos v. United States, where it held that a geographically isolated body of water can be regulated under the CWA only if it has a “significant nexus” to “navigable waters” of the United States. The meaning of “significant nexus” was never clarified. The report on connectivity is meant, in part, to provide insight on this question.

According to the report, scientific evidence “unequivocally” demonstrates that streams, individually or cumulatively, exert a strong influence on the integrity of downstream waters. EPA found that wetlands and open waters in riparian areas and floodplains are physically, chemically, and biologically integrated with rivers via functions that improve downstream water quality. These functions include: the temporary storage and deposition of channel-forming sediment and woody debris; recharge of groundwater sustaining river baseflows; storage of floodwater; retention and transformation of nutrients, metals, and pesticides; and export of organisms or reproductive propogating materials to downstream waters. In addition to providing effective buffers to protect downstream waters from point source and nonpoint source pollution, wetlands and open waters form integral components of river food webs, providing nursery habitat for breeding fish and amphibians, colonization opportunities for stream invertebrates, and maturation habitat for stream insects.

The report recognizes that watersheds are integrated at multiple spatial and temporal scales by flows of surface water and groundwater, transport, transformation of physical and chemical materials, and movements of organisms. Connectivity of streams and wetlands to downstream waters occurs along a continuum that can be described in terms of frequency, duration, magnitude, timing, and rate of change of biotic fluxes to downstream waters. Variations in the degree of connectivity influence the range of functions that streams and wetlands provide. Thus, the incremental effects of individual streams and wetlands are cumulative across entire watersheds and must be evaluated in the context of other streams and wetlands.

National Marine Fisheries Service Reverses Finding that CWA Streamlined Permitting Program Could Create Jeopardy Under ESA

In a newly issued Biological Opinion, the National Marine Fisheries Service (NMFS) has reversed its 2012 finding that the Clean Water Act’s (CWA) streamlined nationwide permitting program could result in jeopardy under the Endangered Species Act (ESA). Nationwide permits govern actions that have limited environmental impacts, and streamlining is intended to expedite the permitting process for those actions. In contrast, activities the Army Corps of Engineers (Corps) determines may discharge dredged or fill material into waters of the United States, but do not qualify for coverage under a nationwide permit, must be authorized under individual 404 permits.

NMFS emphasized that though streamlining of nationwide permits is now considered acceptable under the ESA, new measures promulgated by the Corps will ensure species are protected. These measures include amending notification requirements, holding semi-annual staff meetings, and improving tracking of the permits’ authorized activities. The Corps also plans to issue guidance specifying that regulated entities must report injuries or death of certain marine species listed under the ESA.

The Corps’ new rules will require pre-construction notifications for activities in jurisdictional waters where impervious surface materials will be used and where the waters are inhabited by listed species or are designated critical habitat under the species law. The Corps also plans to modify a nationwide permit covering utility lines and authorization of some oil and gas infrastructure. The oil and gas industry is concerned that the Biological Opinion might result in limitations on the permit, creating an impasse on new energy infrastructure.

US EPA Delays Rollout of New Clean Power Rules

On January 7, the EPA announced that it is delaying release of proposed power plant rules. The rules are intended to lower the power sector’s greenhouse gas emissions 30 percent by 2030. EPA states the delay is meant to give states time to develop compliance plans.

The rules for new power plants were originally slated to be released this week, but their release is now postponed to align with the later release of rules governing existing and modified plants. EPA explained that finalizing the rules for all three types of plants concurrently will allow it to consider overlapping issues in a coordinated fashion. Finalization of the rules is set for mid-summer.

One consequence of the delay is that Congress cannot attempt to override the rules under the Congressional Review Act until later this year. Another outcome of releasing all three rules together is that this strategy could make it harder to bring effective legal challenges against rules; EPA could claim that the new rules constitute a single action, and thus must be challenged in a single brief. EPA, however, denies that legal strategy is motivating the delay.

It is unclear whether there could be further delays down the road, but EPA has at least one important reason for getting the rules finalized on schedule: it would be one of the Obama Administration’s last actions.

EPA Sets Emission Reduction Goals for Power Plants

After hundreds of stakeholder meetings during the past year, the U.S. Environmental Protection Agency has issued emissions guidelines for states to follow as they develop plans to address greenhouse gas emissions from existing power plants. On June 2, 2014, EPA released a proposed rule that would require fossil fuel-fired electric generating units to reduce their 2005-level carbon dioxide emissions 30% by 2030. The rule falls under Section 111(d) of the Clean Air Act.

Each state would have its own rate-based CO2 emissions standard. Interim checkpoints for the ultimate emissions reduction goal would begin in 2020. Aside from improved fossil fuel efficiency, the rule encourages emissions reductions in the energy sector by taking advantage of renewable energy sources and reducing electricity demand across the grid.

The comment period will run for 120 days. States must submit implementation plans by June 30, 2016.

The proposed rule is available here.

U.S. Supreme Court Rules the EPA Has Authority Under Good Neighbor Provision of Clean Air Act to Establish Rules Limiting Emissions and Curtailing Air Pollution Emitted in Upwind States

Environmental Protection Agency et al. v. EME Homer City Generation, L.P., et al. (2014) __U.S.__ (April 29, 2014, Case no. 12-1182)

Over the past several decades, Congress and the Environmental Protection Agency (EPA) have made several efforts to address the difficult challenge of curtailing air pollution emitted in upwind states, but causing harm in downwind states. Under the Clean Air Act, the EPA must establish national ambient air quality standards (NAAQS) for pollutants at levels that will protect health. Once the EPA establishes a NAAQS, it must designate “nonattainment” areas—locations where pollution concentration exceeds the NAAQS. Within three years of any new or revised NAAQS, each state must submit a State Implementation Plan (SIP) to achieve the NAAQS. If the EPA determines a SIP is inadequate, it must prepare and adopt a Federal Implementation Plan (FIP). Among other things, the SIP must “contain adequate provisions … prohibiting … any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will … contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any … [NAAQS].” (42 U.S.C. § 7410 (a)(2)(D)(i).) This requirement is known as the “Good Neighbor Provision” of the Clean Air Act.

Many times over the past two decades, the EPA has attempted to delineate the Good Neighbor Provision’s scope by identifying under what circumstances an upwind state can be said to “contribute significantly” to nonattainment in downwind states. One such attempt is the EPA’s Cross-State Air Pollution Rule (Transport Rule), which aims to reduce mono-nitrogen oxides (NOx) and sulfur dioxide (SO2) emissions in 27 upwind states to achieve attainment of three NAAQS in downwind states. Under the Transport Rule, an upwind state “contribute[s] significantly” to downwind nonattainment if its exported pollution: (1) produces one percent or more of a NAAQS in at least one downwind state; and (2) could be eliminated cost-effectively, as determined by the EPA. Upwind states whose emissions meet both these criteria must eliminate their emissions. Based on complex modeling, the EPA also created an annual emission “budget” for each of the regulated upwind states, representing the total quantity of pollution an upwind state may produce in a given year under the Transport Rule. Having determined that each of the regulated upwind states’ SIPs was inadequate, the EPA also adopted FIPs concurrently with its adoption of the Transport Rule.

A group of state and local governments, joined by industry and labor groups, petitioned for review of the Transport Rule in the D.C. Circuit. The Court of Appeal vacated the rule in its entirety, holding that: (1) the EPA must give states a reasonable opportunity to allocate their emission budgets before issuing the FIPs; and (2) the EPA must not consider cost in determining whether an upwind state “contribute[s] significantly” to a downwind state’s nonattainment. In an opinion delivered by Justice Ginsburg, in which Justices Roberts, Kennedy, Breyer, Sotomayor, and Kagan joined, the Supreme Court reversed.

First, the Court held that the Clean Air Act does not require the EPA to give states a second chance to file a SIP after the EPA has quantified the state’s interstate pollution obligations. Although the state respondents in the case did not challenge EPA’s disapproval of any particular SIP, they argued that the EPA is nevertheless required to give upwind states an additional opportunity to promulgate adequate SIPs after the EPA has set the state’s emission budgets. The Court found that the Clean Air Act’s plain text does not support this argument. Rather, the Clean Air Act only requires that once the EPA disapproves of a SIP, the EPA must issue a FIP. Although the EPA had previously provided upwind states an opportunity to allocate emission budgets among their in-state sources, this did not mean that the EPA acted arbitrarily in declining to do so here.

Second, the Court held that EPA’s cost-effective allocation of emission reductions among upwind states is a permissible, workable, and equitable interpretation of the Good Neighbor Provision. The Court noted that the Good Neighbor Provision does not dictate a specific method of apportioning responsibility among the upwind contributors. In the absence of specific guidance, the EPA’s use of costs in the Transport Rule is an efficient and equitable solution to the allocation problem presented by the Good Neighbor Provision. Furthermore, contrary to the D.C. Circuit’s holding, the EPA must have leeway in fulfilling its mandate to maximize achievement of attainment in downwind states.